JUDGMENT SURINDER SINGH, J. 1. IN Sessions Trial No.3-N/7 of 2008, the learned Additional Sessions Judge, acquitted the respondents for the offences punishable under Sections 302 and 120-B read with Section 34 of the Indian Penal Code for the alleged murder of Harpal Singh, however, convicted and sentenced accused-respondents Pawan Kumar and Harpreet Singh appellants for the offence punishable under Section 25(1B)(i) of the Arms Act, 1959 and sentenced each of them to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.20.000/- each, in default of payment of fine to further undergo simple imprisonment for a period of one year each. They were also given the benefit of Section 428 of the Code of Criminal Procedure for the period undergone in police and judicial custody. 2. THE accused-respondent felt aggrieved by the impugned judgment of conviction and sentence, as such challenged it in appeal (Cr. Appeal No.406 of 2012), whereas the State also filed separate appeal (Cr. Appeal No.565 of 2012) against acquittal and seeking conviction for the offence of murder under Section 302 of the Indian Penal Code. In short, the prosecution case can be stated thus. On 23.12.2007 at about 4.05 p.m., someone made the call in Police Station informing that near "Ruchira Factory", Kala-Amb, a person was lying in an injured condition, thereafter he snapped telephone-line. PW26 Constable Dharam Dutt, posted as MC in Police-Post, Kala-Amb, who had attended the call, recorded it in the daily diary Ext.PW26/A and PW33 SI Balak Ram, who happened to be the Incharge of Police-Post, Kala-Amb, led the police-party to the spot and found a person lying on the spot with bleeding injuries and removed him to 'Sneh Hospital', Kala-Amb for first-aid from where he was referred to PGI, Chandigarh as his condition was serious. The injured was taken to PGI, Chandigarh by his relatives. 3.(ii) PW1 Ishar Singh, father of injured Harpal Singh, got recorded his statement Ext.PW1/A under Section 154 of the Code of Criminal Procedure in 'Sneh Hospital', thus a Rukka was sent for the registration of the case. The injured was taken to PGI, Chandigarh by his relatives. 3.(ii) PW1 Ishar Singh, father of injured Harpal Singh, got recorded his statement Ext.PW1/A under Section 154 of the Code of Criminal Procedure in 'Sneh Hospital', thus a Rukka was sent for the registration of the case. 3.(iii) Shri Ishar Singh aforesaid alleged in his statement that his son Harpal Singh had solemnized court-marriage at Chandigarh with PW2 Navneet Kaur alias Neetu daughter of Kulwant Singh, resident of Rasulpur, on account of this, the parents, brothers and "Nanna" of Navneet Kaur got angry and on the day of marriage accused Harpreet Singh alias Happy, the brother of Navneet Kaur threatened Harpal Singh with dire consequences to kill as and when he would get the opportunity. On 29.11.2007, the mother of Navneet Kaur, namely Amarjit Kaur, her "Nanna" etc. visited her house and had tried to take Navneet Kaur, but she refused to accompany them. They left the place. Navneet Kaur had lodged a complaint against them in Police Station, Sadhaura. A Panchayat was also convened by them. Gurcharan Singh had taken the responsibility of Harpreet Singh alias Happy. PW2 Navneet Kaur and Harpal Singh both took shelter in the house of Partap Singh, his brother, on account of fear. He further stated that on 23.12.2007, at about 4.00 P.M. he alongwith his son Harpal Singh, was going towards "Rurchira factory", Rampur-Jattan on account of their personal work when they reached near the said factory, a white Maruti car, which was having black window panes stopped near them. Out of that car, accused Pawan Kumar and Harpreet Singh alighted. Harpreet Singh was having a sword in his hand. Pawan Kumar and one other person were having some weapons. Harpreet Singh hit his son with sword on the left side near the ear. Pawan Kumar and other person accompanying them had given blows on his stomach with some weapons. He also heard noise of gun fire and got perplexed, but did not know what was the weapon used by the accused persons to hit his son on his stomach, but however, his intestine had come out. Lot of blood came out from the injuries. Thereafter all the accused persons fled away from the spot. However, later he came to know that the said car in which the accused persons had come, was bearing registration No.HR-05A-4155. Lot of blood came out from the injuries. Thereafter all the accused persons fled away from the spot. However, later he came to know that the said car in which the accused persons had come, was bearing registration No.HR-05A-4155. He also referred in the above statement that with the help of some passers- by the injured was removed to the hospital. 3.(iv) On the basis of aforesaid evidence, police registered the FIR and prepared the site plan Ext.PW33/A of the place of alleged incident and took into possession blood stained earth, which was sealed in a bottle and taken into possession vide memo Ext.PW1/B in the presence of Ishar Singh and Lajja Ram. Police made a hunt for the accused persons, but they were not available. The information was supplied to the Superior officers. In the meantime, S.H.O., Police Station also reached there. Later they came to know that injured Harpal Singh had died in PGI, Chandigarh and his dead body was brought back to Kala-Amb. Police also prepared the inquest papers Ext.PW33/B and PW33/C. The dead- body of Harpal Singh was sent for autopsy to Zonal Hospital, Nahan. They took photographs of the dead-body, it was also got x-rayed. The postmortem of the dead body was performed on 24.12.2007 by PW22 Dr. Atul Bhardwaj alongwith Dr. Parvesh Aggarwal and Dr. Ashit Kumar. The Doctor noticed the following injuries on the dead-body: "1) Nearly 8 cm linear incised wound nearly 2 cm wide, maximum in center behind left pinna, extending from left occiput to left cheek involving left ear lobe, tailing anteriorly nearly 4 cm deep behind left pinna, where brain mater can be seen through the wound. Clear cut margins of wound with evidence of bleeding indicating sharp edged instrument being used. 2) Linear incision nearly 12 cm (long) x 1.5 cm (wide) x 1 cm (deep) maximally extending from lower occiput upto left upper neck, tailing anterily below left angle of mandible, with clear cut margins and evidence of clotted blood indicating use of sharp instrument. 3) Multiple linear abrasions measuring between 7 to 9 cm along left shoulder girdle and upper chest. Thorax walls ribs & Cartilage and Pleurae were found to be within normal limits. Both lungs were found to be congested alongwith pericardium. 3) Multiple linear abrasions measuring between 7 to 9 cm along left shoulder girdle and upper chest. Thorax walls ribs & Cartilage and Pleurae were found to be within normal limits. Both lungs were found to be congested alongwith pericardium. Abdomen: Wall Nearly circular hole (3 to 4 cm in dia) with clear defined inverted margins with intestinal loops protruding through the hole located nearly 3 cm above umbilicus marginally right of midline. Evidence of clotted blood and dark blackish discolouration of anterior abdominal wall extending nearly 4 to 5 cm radially from the hole. On exploration of metallic shell, possibility of cartridge found impacted within intestinal loops (sealed and sent for forensic analysis)." 3. (v) In the opinion of the doctor, the cause of death was owing to hypvolemic shock following excessive intra-abdominal bleeding and post- traumatic blood loss from incised wounds to be corroborated with X-ray report. Viscera /samples were sealed and sent for forensic examination to SFSL, Junga. In the opinion of the doctor the injuries on abdomen could be caused on account of gut shot. They issued post-mortem report Ext.PW22/B. 3.(vi) The forensic reports are Ext.PX to PZ. No alcohol was detected, as per report Ext.PX. Further, as per forensic report Ext.PZ/1, wearing apparels of the deceased were having human blood of group 'B'. 3.(vii) On 11.1.2008, the accused persons were arrested from Yamuna Nagar (Haryana), earlier to that they were not available at their residences and were absconding. 3.(viii) During investigation police also took into possession complaint of Navneet Kaur and Harpal Singh (deceased) from Police Station Sadhaura (Yamuna Nagar) whereby they had requested to provide police protection to them as they were apprehending danger from the family of Navneet Kaur. There has also been a compromise on 17.9.2007 inter se both the families, as such a compromise deed executed before the Panchayat (Ext.P1) was also taken into possession from Ishar Singh on 5.1.2008 by the police. 3.(ix) PW28 SI Subhash Chand had arrested accused Gurcharan Singh (now deceased) on 24.12.2007 from his house. 3.(x) On 17.1.2008 deceased accused Gurcharan Singh took the police to the place where he had allegedly thrown empty cartridge and sword. The field was searched by the police party as well as accused Harpreet Singh. 3.(ix) PW28 SI Subhash Chand had arrested accused Gurcharan Singh (now deceased) on 24.12.2007 from his house. 3.(x) On 17.1.2008 deceased accused Gurcharan Singh took the police to the place where he had allegedly thrown empty cartridge and sword. The field was searched by the police party as well as accused Harpreet Singh. Empty cartridge (Ext.P11) was recovered by accused Harpreet Singh from the grass lying in the field, which was sealed and taken into possession vide memo Ext.PW9/G in the presence of PW9 Vas Dev Singh and Girdhari Lal. Site plan Ext.PW28/A was also prepared to this effect. 3.(xi) On 1.2.2008, RC of the vehicle, allegedly used in the crime, was produced by Manjeet Kaur, which was also taken into possession vide memo Ext.PW16/A. 3.(xii) PW32 DSP Vijay Kumar Sharma on 13.1.2008 had interrogated accused Pawan Kumar. During interrogation he is alleged to have made disclosure statement (Ext.PW9/B) under Section 27 of the Evidence Act in the presence of PW9 Vas Dev Singh and Nasib to the effect that he had kept concealed six live cartridges (12 bore) and one live cartridge 8 MM in the plastic bag and have buried in a cane- field near village Dhanana (Patavi) to which he can get it recovered. On the same day accused Harpreet Singh also made disclosure statement Ext.PW9/A under Section 27 of the Evidence Act to the effect that he had kept concealed two country made pistols wrapped in a polythene envelop and have burred in the sugar cane field near village Dhanana (Patavi) whereas sword and empty cartridge had been thrown in the same cane-field and further disclosed that the Maruti car used in the crime had been parked by him at Basi-Pathana. 3.(xiii) Thereafter, the accused aforesaid led police party and the witnesses to the spot and accused Pawan Kumar identified the place in the sugar-cane field and got recovered six live cartridges (.12 bore) (Ext.P7 to P10) and one of 8 MM live cartridge which were found buried in the field. 3.(xiii) Thereafter, the accused aforesaid led police party and the witnesses to the spot and accused Pawan Kumar identified the place in the sugar-cane field and got recovered six live cartridges (.12 bore) (Ext.P7 to P10) and one of 8 MM live cartridge which were found buried in the field. These articles were made into parcel, sealed with seal impression 'D' and taken into possession vide memo Ext.PW9/C. Thereafter accused Harpreet Singh got recovered two country made pistols (Ext.P2 and P3) found in the field, which were also made into a parcel and sealed with the same seal and were taken into possession vide memo Ext.PW9/F after preparing sketch-maps Ext.PW9/D and E and also the spot map of the recovery Ext.PW32/A. 3.(xiv) The samples collected from the spot including the recovery of arms and ammunition material were sent for analysis. As per report Ext.PW24/A lead residues were detected on the exhibit-4a (skin), exhibit-4b (wad) is the cushion wad of 12 bore cartridge and no lead residues were detected in exhibit-7b (T-shirt) of the deceased. Further, as per report Ext.PW24/B, cartridges found in exhibit E/1 marked from A/1 to A/6, i.e., six cartridges are the cartridges of 12 bore, one cartridge marked as A/7 in E/1 is a misfired cartridge of 8 MM caliber. Further, as per the opinion of the ballistic expert, the gunshot fire residues were also detected in the barrel of exhibit E/2a (Desi Katta), but however, no opinion was possible about the time of the fire. The gunshot fire residues were also detected from another Desi Katta exhibit E/2a. The fired cartridge exhibit E/4 was opined to have been fired from exhibit E/2a (Desi Katta). As per report Ext.PW24/C, no lead residues were found in the skin of liver, kidney and intestine. 3.(xv) Viscera did not contain any poison or alcohol. Forensic expert also examined the car in question. The report is Ext.PY. There was a small brown stain on the front right foot mat which tested positive for human blood, but it was insufficient for further examination. 3.(xvi) During investigation, police obtained the sanction Ext.PW31/A to prosecute the accused under the Arms Act from the District Magistrate. 3. ON completing investigation, Challan was presented against the accused for their trial under Section 302 of the Indian Penal Code and 25 of the Indian Arms Act. During the course of trial, accused persons were enlarged on bail. 3.(xvi) During investigation, police obtained the sanction Ext.PW31/A to prosecute the accused under the Arms Act from the District Magistrate. 3. ON completing investigation, Challan was presented against the accused for their trial under Section 302 of the Indian Penal Code and 25 of the Indian Arms Act. During the course of trial, accused persons were enlarged on bail. The accused Gurcharan Singh expired when the matter was pending committal. The remaining accused persons were committed to the Court of Sessions. They were charge-sheeted for conspiracy and murder read with Section 34 of the Indian Penal Code and also under Section 25 of the Arms Act to which they pleaded not guilty and claimed trial. 4. TO prove its case, the prosecution examined as much as 33 witnesses. The accused persons were also examined under Section 313 of the Code of Criminal Procedure. The circumstances which were found attendant upon them were put to each of them to which they denied. However, accused Harpreet Singh stated that his sister PW2 Navneet Kaur had married the deceased of her own volition, but denied having given any threats to the deceased husband. He admitted that the matter was also got settled in the village Panchayat, thereafter there remained no grievance with the complainant party. They denied the alleged recoveries and expressed their ignorance about the gunshot injuries to the deceased. According to the accused persons, investigation was not fair. When called upon to enter into their defence, they did not adduce any evidence in defence. At the end of trial, accused persons were acquitted for the offence of murder, but convicted under the Arms Act as aforesaid. 5. FOR acquitting the accused for the offence of murder and conspiracy the learned trial Court did not believe the statements of PW1 Ishar Singh, PW3 Ashwani Kumar and PW4 Munish Kumar, the alleged eye witnesses and further the injuries in question to the deceased could not be connected with the alleged recoveries of illegal fire arms, but however, pursuant to the statements recorded under Section 27 of the Indian Evidence Act the accused had effected the recoveries of illegal arms and got recovered illegal weapons and cartridges, which were unauthorized and without license, as such convicted and sentenced under the Arms Act. 6. 6. SHRI D.C. Pathik and Shri M.A. Khan, learned Additional Advocates General duly assisted by Shri Ramesh Thakur, learned Assistant Advocate General, vehemently argued that the learned trial Court wrongly appreciated the testimonies of the alleged eye witnesses and further that the evidence of conspiracy and murder is cogent, consistent and reliable which should have been acted upon. Contra, Shri I.S. Chandel duly assisted by Shri Neeraj Sharma, learned Counsel supported the impugned findings of acquittal for the offence of murder and conspiracy but laid challenge qua the conviction of accused persons under the Arms Act and for that they have referred to the evidence on record and concluded that the recoveries are false, therefore, the accused persons deserve acquittal. 7. WE have carefully reappraised and scanned the evidence on record. We find inconsistencies in the statements of alleged eye witnesses and official witnesses, which create a suspicion to convict the accused for the offence of conspiracy and murder. For that we reappraise the evidence hereinafter. 8. PW 1 Ishar Singh stated about the alleged incident having taken place in his presence and also mentioned the number of the car in the said statement to which he allegedly came to know later on and this statement Ext.PW1/A was got recorded by him to the police in Sneh Hospital, Kala-Amb where the injured was being given first-aid. But during the trial, he was examined as PW1 and revealed another story which was not there in the initial statement Ext.PW1/A that the Maruti car came in a speed and hit his son Harpal Singh because of which he fell down. Thereafter the vehicle was stopped and accused Pawan Kumar and Harpreet Singh had alighted therefrom. Harpreet Singh accused was having a sword and Pawan Kumar a gun. Harpreet Singh gave blow of sword which landed on the left ear and Pawan Kumar fired a gunshot on Harpal Singh, whereas in the statement Ext.PW1/A no such reference like hitting the deceased by Maruti car or having fired at by Pawan Kumar in his abdomen was found mentioned. He also did not state that thereafter he fell unconscious to which he stated as PW1. He also stated that after regaining his senses he was offered water by some- passerby and with their help he got his injured son removed to Sneh hospital, Kala-Amb, whereas PW33 SI Balak Ram had another story to tell. He also did not state that thereafter he fell unconscious to which he stated as PW1. He also stated that after regaining his senses he was offered water by some- passerby and with their help he got his injured son removed to Sneh hospital, Kala-Amb, whereas PW33 SI Balak Ram had another story to tell. He stated that when he reached the spot they found and took the injured to Sneh hospital, Kala-Amb for first-aid and this witness did not say anything about the presence of other witnesses on the spot. When PW1 Isher Singh did not say that the police had reached the spot and took injured to hospital. Further PW33 Balak Ram stated that the injured was serious and was referred to PGI Chandigarh and PW1 Ishar Singh got recorded his statement Ext.PW1/A at Sneh hospital, Kala-Amb of his own, but PW1 stated that he went to the Police-Post, Kala-Amb and lodged the report where his statement Ext.PW1/A was recorded. Pertinently, in his cross-examination he stated that on the day of alleged incident he came from his village whereas deceased Harpal Singh had come from Moginand. By the time Harpal Singh was attacked he did not meet the deceased and with the same breath he stated that Harpal Singh was 10 to 15 steps ahead of him and he ran towards Harpal Singh when he was hit by the car because of traffic he could not cross the road as the attack on his son was on the other side of the road whereas he was on left side of the road. As soon as he reached near his son there was air-fire as well as one fire hit his son. All this, according to him, happened within two minutes and further stated that he fell unconscious at a distance of about 50 feet from the place where his son was attacked. He also stated that Police-Post, Kala- Amb fell in between the place of occurrence and Sneh hospital, but they removed the injured to the hospital, thereafter he reported the matter to the police. He also stated that he did not mention about the involvement of the third accused to this effect. He was also confronted with his statement from portion 'A' to 'A' to which he denied. He also stated that he did not mention about the involvement of the third accused to this effect. He was also confronted with his statement from portion 'A' to 'A' to which he denied. He was also confronted with the said statement with respect to one gunshot fire which also did not find mentioned therein. He stated that after making his statement Ext.PW1/A at 6.00 p.m. he remained in the Police Station throughout the night. He could not tell the other name of the other person who had witnessed the occurrence, rather denied making any statement like Ext.PW1/A as he fell unconscious. He also denied that his deceased son was doing the business of scrap dealers. He admitted that on 23.12.2007 on the day of alleged incident, there was a 'Rassam Pagri', because of the death of his uncle Sukha Singh which was attended by many relatives, but denied that he had attended that 'Rassam Pagri' which concluded at 5.00 p.m., but he admitted that it was concluded at 3.00 p.m. He denied that after the compromise Ext.P1 there was no dispute with the family of the accused. He also denied that his deceased son had inimical relations with other scrap dealers and he was apprehending danger to his life from them. 9. Another witness is PW2 Navneet Kaur, the wife of the deceased did not support the prosecution case, as such she was declared hostile. She, however, admitted that because of the threats from her parents they had stayed in the house of Partap Singh. In the cross-examination conducted by the learned counsel for the accused she categorically stated that on 23.12.2007, i.e., on the day of alleged occurrence, she alongwith her father-in-law and uncle Partap Singh was in village Udhamgarh on account of 'Pagri Rassam' of Shri Sukha Singh, uncle of her father-in-law, where Ishar Singh aforesaid had received telephonic message around 4.30 p.m. that someone had caused injuries to Harpal Singh and were asked to reach Sneh hospital, Kala-Amb. They reached Sneh hospital and after giving first-aid Harpal Singh was referred to PGI, Chandigarh. She stated that her deceased husband was doing the business of scrap dealer and had informed her that other scrap dealers were not happy with him and he was apprehensive from them. 10. PW 3 Ashwani Kumar was running a 'Karyana' shop near "Ruchira factory". They reached Sneh hospital and after giving first-aid Harpal Singh was referred to PGI, Chandigarh. She stated that her deceased husband was doing the business of scrap dealer and had informed her that other scrap dealers were not happy with him and he was apprehensive from them. 10. PW 3 Ashwani Kumar was running a 'Karyana' shop near "Ruchira factory". He also did not support the case of the prosecution. When confronted with his statement recorded under Section 161 of the Code of Criminal Procedure, he flatly denied having made such a statement. In the cross-examination by the accused he stated that there were many shops on both sides of the road. He had also admitted that after sometime police had reached the spot and removed the injured in a private vehicle. Further, according to him, the accused persons shown to him in the Police Station and denied that they were the assailants. Pw4 Munish Kumar is also a hostile witness. He stated that he did not see the car striking against the injured, but however, he had seen two persons running in the car and he did not notice the number of the car. He also denied that it was having registration No.HR-05- 4155. However, he admitted that he had noticed the injuries on the abdomen and ear of the deceased. He did not say that the accused persons were the assailants. 11. PW 5 Inder Singh stated that after the marriage of Navneet Kaur with deceased her parents had advanced threats to them and her parents had tried to take her to their house, but she refused. They gave threats to do away with their life. He also stated that both of them were residing in the house of Partap Singh in village Moginand (Nahan) being under threat, later he came to know about the death of Harpal Singh, when he visited Kala-Amb. He stated that accused Happy and Pawan Kumar had visited village Udamgarh in Maruti car having black window panes during the day time, even PW-8 Prem Singh has also stated so. In cross-examination he stated that he as well as Ishar Singh, both are from the same family. He also admitted that a road from Udamgarh touching Kala-Amb Sadhaura road passes through village Udamgarh towards Naraingarh. He further admitted that the compromise Ext.P1 was arrived at inter se the parties. In cross-examination he stated that he as well as Ishar Singh, both are from the same family. He also admitted that a road from Udamgarh touching Kala-Amb Sadhaura road passes through village Udamgarh towards Naraingarh. He further admitted that the compromise Ext.P1 was arrived at inter se the parties. He also stated that a telephonic message was received by Partap Singh when he was attending 'Pagri Rassam' of Sukha Singh in their village. Pertinently, he stated that Ishar Singh was present there, then he corrected himself that Ishar Singh was not present at the time of 'Pagri Rassam' as he had gone to village Moginand to meet his son. He also stated that Ishar Singh was called to the Police-Post. PW6 Partap Singh having admitted his presence on 23.12.2007 at Udamgarh where he attended 'Pagri Rassam'. He denied the presence of Navneet Kaur in the said function, but he did not see Ishar Singh there nor he enquired where he was on that day. He also stated having reached Police-Post, Kala-Amb at 4.00 p.m. 12. NOW against the above background and on the critical examination, in so far as the incident is concerned, we do not find any consistency in the statement of the alleged eye witnesses to connect the accused persons with the offence of murder and conspiracy, Their statements are not inspiring confidence. Though the recoveries of the gunshot and cartridges raise suspicion in the involvement of the accused, but it is a cardinal principle of law howsoever there being a strong suspicion, the same cannot take the place of proof. Prosecution is obliged to prove its case beyond doubt, to which the prosecution failed to discharge successfully. So far as the recoveries of illegal arms and ammunition is concerned, it stands proved by PW32 DSP Vijay Kumar Sharma in the presence the of PW9 Vas Dev Singh, pursuant to disclosure statement of accused Pawan Kumar (Ext.PW9/B and C), which led to the recovery of six live cartridges and one live cartridge 8 mm contained in the plastic bag, which were kept concealed in the sugar-cane-field and he had special knowledge of its hiding out. Further Harpreet Singh also got recovered Dessi Kattas (country made pistols) Ext.P2 and Ext.P3, both these illegal weapon were got examined from the ballistic expert, they were found in working order and fell within the definition of fire-arms. Further Harpreet Singh also got recovered Dessi Kattas (country made pistols) Ext.P2 and Ext.P3, both these illegal weapon were got examined from the ballistic expert, they were found in working order and fell within the definition of fire-arms. The District Magistrate had accorded sanction to prosecute the accused persons which could not be faulted. The said recoveries may not be corroborative piece of evidence in the instant case for proving the charge of murder and conspiracy, but its possession with special knowledge of both the accused about the concealment by them can only be attributed to them and none-else. Therefore, they were rightly convicted and sentenced for the offence under Section 25 (1B) (a) of the Indian Arms Act. Thus, both the appeals are without any merit, hence dismissed, so also the pending applications, if any. 13. SEND down the records.